Adultery is a clear ground for a divorce – right?

There is only one ground for a divorce and that is that the “marriage has broken down irretrievably”. To all non-lawyers out there this seems to be pretty clear and quite simple. Once the marriage has broken down, a divorce is going to be easy.

If only that was the case! To show that the marriage has irretrievably broken down the person asking the Court for a divorce must rely on one or more of the following five facts:

Adultery;

You cannot reasonably be expected to live with the other party;

Desertion for at least 2 years;

2 years separation and both consent;

5 years separation (consent not necessary).

In real life, the last three facts are less often relied upon because once the decision has been made to divorce most people want to draw a line under it as quickly as possible and move on with their lives. Unreasonable behaviour is the most commonly cited fact in divorce petitions in England and Wales, adultery is also often used.

Here’s the rub. If you want to rely on adultery as the fact for your divorce, you need to make sure that you don’t fall into one of the traps that lie in wait for the unwary:

You cannot rely on your own adultery. The adultery has to be by the other party;

The other party is asked to admit their adultery;

You cannot rely on adultery if you lived together as a couple for 6 months after you found out about it unless the adultery is continuing;

If you are in a same sex civil-partnership and you discover infidelity you cannot rely on it as same-sex adultery doesn’t exist in the eyes of the law.

Relying on adultery can be problematic. Taking legal advice early once infidelity is discovered is a good idea.

Divorce and negotiating the law can be tricky. Battens’ Family Team is highly respected in bringing specialist expertise and a compassionate approach to this delicate area of law. Battens offers advice on a fixed fee basis with no obligation if you wish to explore this area further and we offer competitive rates on an ongoing basis.